1

The Honorable John A. Jarvey, United States District Judge for the Southern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-3427

___________

Lucy M. Cross, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Prairie Meadows Racetrack *

and Casino, Inc., *

*

Appellee. *

___________

Submitted: April 12, 2010

Filed: August 12, 2010

___________

Before WOLLMAN, HANSEN, and MURPHY, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

Lucy Cross appeals the district court’s1

 grant of summary judgment to Prairie

Meadows Racetrack and Casino, Inc. (Prairie Meadows) on her hostile work

environment claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq., and the Iowa Civil Rights Act of 1965 (ICRA), Iowa Code § 216.1

et seq. We affirm.
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I.

From August 2005 until September 2007, Cross worked at Prairie Meadows as

a valet, parking cars on the night shift. Cross and the other valets on her shift were

typically supervised by traffic supervisor Tony Fucaloro, who reported to the traffic

manager, Bill Riddle. Although Fucaloro and Riddle were considered members of

Prairie Meadows management, neither individual had the ability to hire, fire, promote,

or reassign any of the valets. The Human Resources office had sole authority to

terminate an employee.

When Cross began working at Prairie Meadows she was given a copy of the

company’s policy regarding harassment and violence in the workplace. The policy

explained that Prairie Meadows had zero tolerance for sexual harassment and listed

various ways that employees could seek help if they experienced harassing or violent

behavior, including talking to a supervisor or directly contacting the Human

Resources department. The policy stated that any member of management who

received a complaint of sexual harassment was required to forward the complaint to

Human Resources. If an employee was unhappy with the resolution of her complaint,

the policy stated that she could address her concerns to upper level management and

the company CEO. Cross read the policy and testified that she was aware that there

were multiple effective avenues for reporting harassment.

In the summer of 2006, about one year after Cross began working at Prairie

Meadows, Cross reported that she had had a problem with another valet named

Semsudin Rizvic. According to Cross, Rizvic frequently pestered both his male and

female coworkers, tripping them or taking their keys. Cross reported to Fucaloro that

Rizvic had grabbed her pony tail and pulled her out of the valet shack, an area where

the valets stored keys for the customers’ vehicles. Fucaloro spoke about the incident

with Rizvic and Sherry Chambers, a Prairie Meadows employee who had been nearby

when it happened. Both Rizvic and Chambers confirmed that Rizvic had tugged
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Cross’s hair but characterized it as an instance of playful teasing, less severe than

Cross had made it out to be. Fucaloro called the valets together and admonished all

of them to avoid horseplay, but he did not report the incident to Human Resources or

inform anyone else of Cross’s complaint. According to Cross, Rizvic did not pull her

hair again after this incident. 

On another occasion, Rizvic brushed the back of his hand across Cross’s breast

in a purported attempt to wipe something off her shirt. Cross told Rizvic that his

behavior was inappropriate and Rizvic laughed in response. When Cross informed

Fucaloro about Rizvic touching her breast, Fucaloro discussed the matter with Rizvic

but accepted Rizvic’s justification that the contact was acceptable because Rizvic had

touched Cross only with the back of his hand and only in an effort to brush something

from her shirt. Neither Cross nor Fucaloro discussed the incident with Human

Resources or any other member of management. 

Cross also informed Fucaloro of an incident in which Rizvic had pulled a car

in front of her as she was walking through the valet parking lot and asked her whether

she liked him. Cross responded that she liked Rizvic only as a friend, causing Rizvic

to angrily respond that he wanted to be more than friends. Rizvic banged his hands

on the steering wheel and maneuvered the car to block Cross’s path. Cross felt

threatened and was frightened by the encounter. When Fucaloro heard about Rizvic’s

behavior he told Cross, “that’s just Sam.” Fucaloro did not investigate or report the

matter, and Rizvic was not disciplined for his conduct. 

On September 18, 2007, Denis Felic, another valet, told Cross that Rizvic had

said that Cross had performed oral sex on Rizvic and that it had been “great.” Cross

confronted Rizvic, who denied ever making the statement. Cross and Rizvic had an

angry exchange of words, after which Cross sought out a supervisor to whom she

could report the incident. Mike Russo, another traffic supervisor working that night
2

The record reflects that the valets frequently used a golf cart to go to and from

parked vehicles.

3

Although Cross originally maintained that she was terminated for reporting the

harassment, the district court concluded that her termination theory was not

reasonably supported by the evidence, a ruling that Cross has not appealed. 

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on Cross’s shift, told Cross to write a report. Cross complied, summarizing her

complaint as follows:

I have been having problems w/Sam. today I get to work & every time

he seen me he had made childish sounds, imatating me being a crybaby,

then denis came up to me and told me that Sam was talking about me

giving him a blow job and wanting to give him one! he gave me a ride

on the golf cart2

 and tryed to make me fall out & about did i told him to

knock it off, so then im down at the shack and he keeps making moves

like hes going to hit me. So then I had had enough so i told him to grow

up, he started screeming at me telling me to shut the F up, kiss his ass,

and it only goes on & on Sherry [Chambers] seen the whole thing. 

Russo reported the incident to Riddle, who forwarded Cross’s complaint to

Human Resources, which conducted an investigation. Rizvic was interviewed and

denied having spread a rumor about Cross performing oral sex. Chambers, who had

observed part of the encounter, told Human Resources that she did not believe Rizvic

had actually made the comment about Cross, and she stated that Cross regularly

picked on Rizvic by tripping or slapping him. Notwithstanding the conflicting

versions of the dispute, Prairie Meadows suspended Rizvic and terminated his

employment shortly thereafter because it determined that he had violated the

workplace violence policy by threatening Felic for accusing him of starting the rumor.

Cross left Prairie Meadows on September 19, 2007, and never returned.3

 In the

course of pursuing this lawsuit, Cross described a number of incidents of sexual

harassment that she had not reported while working at Prairie Meadows. 
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Cross also stated that her supervisors contributed to the poor working

environment. Riddle made a number of offensive comments about women, telling

Cross that women were “worthless,” that they should not have the right to vote, and

that they should “bow down” to men. Riddle also squeezed Cross in the neck and

shoulder area on three or four occasions. Fucaloro made sexual jokes in front of

Cross, told Cross he had had a sexual dream about her, and pinched her legs on

several occasions. Fucaloro also called Cross a “bitch” several times. Cross never

confronted Riddle or Fucaloro about their offensive conduct and she never reported

the harassment to Human Resources or any other member of Prairie Meadows

management.

The district court concluded that Prairie Meadows was entitled to summary

judgment because the incidents of harassment that Cross reported were not severe or

pervasive enough to establish a hostile working environment. The district court also

found that Cross could not show that Prairie Meadows knew or should have known

about the unreported harassment but failed to take proper remedial action. 

II.

We review the district court’s grant of summary judgment de novo.

Cheshewalla v. Rand & Son Const. Co., 415 F.3d 847, 850 (8th Cir. 2005). Summary

judgment is proper when, viewing the record in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Roeben v. BG Excelsior Ltd. P’ship, 545 F.3d

639, 642 (8th Cir. 2008). To survive summary judgment, a plaintiff must substantiate

her allegations with enough probative evidence to support a finding in her favor. Id.
4

We use the same framework to analyze Cross’s claims under both Title VII and

the Iowa Civil Rights Act. See Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144,

1147 (8th Cir. 2008) (“In most respects, Iowa courts have used the analytical

framework used for Title VII claims, and have looked to federal law for guidance, in

deciding cases under the ICRA because the ICRA is modeled in part on Title VII.”).

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Cross claims that Prairie Meadows violated Title VII by subjecting her to a

hostile work environment.4

 To establish a prima facie claim of hostile work

environment by non-supervisory co-workers, a plaintiff must show (1) that she

belongs to a protected group; (2) that she was subjected to unwelcome sexual

harassment; (3) that the harassment was based on her membership in a protected

group; (4) that the harassment affected a term, condition, or privilege of her

employment by creating a hostile work environment; and (5) that the employer knew

or should have known about the harassment and failed to take proper remedial action.

Alagna v. Smithville R-II Sch. Dist., 324 F.3d 975, 979 (8th Cir. 2003). For purposes

of summary judgment, Prairie Meadows concedes the first three factors. Thus, the

question is whether the harassment rose to the level of a hostile work environment

and, if so, whether Prairie Meadows knew or should have known about the harassment

and failed to take appropriate corrective action.

The standard for demonstrating a hostile work environment on the basis of

sexual harassment is a demanding one. LeGrand v. Area Res. for Cmty. and Human

Servs., 394 F.3d 1098, 1101 (8th Cir. 2005). “Title VII does not prohibit all verbal

or physical harassment and [it] is not a general civility code for the American

workplace.” Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 846 (8th

Cir. 2006) (internal quotations omitted). Actionable conduct must therefore be

extreme rather than merely rude or unpleasant. LeGrand, 394 F.3d at 1101. A

plaintiff must establish that discriminatory intimidation, ridicule, and insult permeated

the workplace. Rheineck v. Hutchinson Tech., Inc., 261 F.3d 751, 756-57 (8th Cir.

2001). In determining whether a plaintiff has demonstrated a hostile work

environment, we consider the totality of the circumstances, including the frequency
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and severity of the conduct, whether it is physically threatening or humiliating, and

whether it unreasonably interferes with the plaintiff’s job performance. Id. at 757. 

 

A. The Reported Incidents

We agree with the district court’s conclusion that the reported harassment was

not so severe or pervasive that it met the high threshold for a hostile work

environment. Cross reported four discrete incidents over a period of two years. She

first complained to Fucaloro that Rizvic had grabbed her hair and pulled her out of the

valet shack. Cross also reported that Rizvic brushed the back of his hand across her

breast in a purported effort to wipe something off her shirt and that he responded in

an angry and physically threatening manner when she rebuffed his request that they

be “more than friends.” Finally, Cross reported that Rizvic spread a rumor that she

had performed oral sex on him. Taken together, these four incidents over Cross’s

two-year period of employment are insufficient to establish that the work environment

was so permeated with discriminatory conduct that it altered a term, condition, or

privilege of her employment. See, e.g., Duncan v. General Motors Corp., 300 F.3d

928, 935 (8th Cir. 2002); see also Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1988) (“[S]imple teasing, offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the terms and conditions of

employment.”) (internal citation and quotations omitted). This conclusion is

supported by the evidence that the harassment did not unreasonably interfere with

Cross’s job performance, as Cross testified that despite Rizvic’s offensive conduct,

she was able to perform her job well. See Stuart v. General Motors Corp., 217 F.3d

621, 633 (8th Cir. 2000) (holding that the plaintiff could not demonstrate a hostile

work environment because, among other things, she was able to perform her duties

unimpeded by the harassment). Accordingly, Cross has not demonstrated a genuine

issue of material fact with respect to whether the reported harassment rose to the level

of a hostile work environment. 
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We further conclude that even if the reported incidents rose to the level of a

hostile work environment, Cross could not show that Prairie Meadows failed to

respond adequately to her complaints. After Cross told Fucaloro that Rizvic had

pulled her hair, Fucaloro addressed all of the valets and admonished them to avoid

horseplay. Cross contends that this response was inadequate for two reasons—first,

because she did not believe that the misconduct was mere horseplay; and second,

because Prairie Meadows’s harassment policy required Fucaloro to report the incident

to Human Resources. For purposes of summary judgment, we credit Cross’s

statements about the severity of the misconduct. It is undisputed, however, that

Fucaloro received conflicting reports about what had happened, with Rizvic and

Chambers expressing the view that Cross had overreacted to a playful tug of her hair.

In these circumstances, Fucaloro’s admonition that the valets should avoid horseplay

was not a failure to take appropriate remedial action. As to Cross’s second argument,

it suffices to say that the obligations of an employer under Title VII are not defined

by the strictures of its own policy on harassment. Although an employer’s failure to

adhere to its internal policies may be relevant in some cases, it does not follow that

violation of an internal reporting procedure automatically establishes a failure to take

appropriate remedial action under federal law. Employers are free to draft harassment

policies that are more stringent than Title VII, and they should be permitted to do so

without fear that they will incur additional liability as a result of their efforts. See

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998) (“Title VII is designed to

encourage the creation of antiharassment policies and effective grievance

mechanisms.”). 

Cross’s last complaint before she left the workplace—that Rizvic had started

a rumor that Cross performed oral sex on him—was forwarded to Human Resources,

and the company conducted an investigation. Again, reports about the incident

conflicted. Rizvic denied starting the rumor and Chambers supported Rizvic’s version

of events. Prairie Meadows ultimately terminated Rizvic, however, for making a

threatening remark in relation to the controversy. Cross faults Prairie Meadows that
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it did not terminate Rizvic as a direct result of her complaint, but she does not explain

what additional action the company could have taken once he was gone. In these

circumstances, Prairie Meadows’s investigation and resolution of this incident cannot

be considered a failure to take proper remedial action.

That leaves Cross’s two complaints about Rizvic brushing the back of his hand

against her breast and about Rizvic’s angry response when she told him she did not

want to be more than friends. Cross claims that Fucaloro talked to Rizvic about

touching her breast but accepted Rizvic’s explanation for the behavior. Additionally,

when Cross told Fucaloro about Rizvic’s angry response to her comment that she

wanted only to be friends, Fucaloro replied, “that’s just Sam.” The record reflects that

these two incidents were reported to Fucaloro as isolated acts rather than repeated,

ongoing instances of misconduct. Although Fucaloro would have been well advised

to take these incidents more seriously, that evidence is not sufficient to establish a

Title VII violation. 

Moreover, it is undisputed that Cross knew that there were additional avenues

that she could pursue if she was unsatisfied with the response to her complaints.

Cross also testified that she knew that these alternative routes were effective. Indeed,

when Human Resources eventually learned of one of Cross’s complaints, the company

suspended Rizvic and conducted an investigation. Despite the existence of multiple

avenues for obtaining relief, Cross did not seek additional help in eliminating the

harassment. The record reflects that Cross’s final complaint reached an ultimate

decision-maker only because traffic supervisor Russo instructed Cross to write a

report, which Riddle then sent to Human Resources. 

An employee has a duty to take reasonable steps to prevent harassment and

mitigate harm. See Faragher, 524 U.S. at 806-07. When, as here, there are multiple

effective avenues for reporting misconduct, “[a] reasonable person, realizing that her

[initial] complaints were ineffective, would then seek a remedy elsewhere.” Parkins
5

Cross’s continued reliance on Fucaloro and her failure to pursue any alternative

routes to address Rizvic’s behavior are even more baffling in light of her claim that

Fucaloro participated in the harassment. 

6

Cross has not explicitly appealed the district court’s grant of summary

judgment with respect to her claims involving Fucaloro and Riddle. In any event, we

agree with the district court’s well-reasoned conclusion that Cross cannot prevail on

these claims. Cross did not tell Fucaloro or Riddle that their behavior was

objectionable, and she failed to complain to Prairie Meadows about the harassment,

despite its provision of an effective anti-harassment policy. Summary judgment was

therefore proper. See Gordon v. Shafer Contracting Co., Inc., 469 F.3d 1191, 1195

(8th Cir. 2006) (explaining that an employer is not liable for harassment by

supervisory personnel if the employer can prove that it exercised reasonable care to

prevent and promptly correct the harassment and that the employee unreasonably

failed to take advantage of corrective opportunities). 

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v. Civil Constructors of Il., Inc., 163 F.3d 1027, 1038 (7th Cir. 1998). Fucaloro was

a relatively low-level employee, with little managerial discretion and no authority to

make an ultimate decision about whether Rizvic should have been suspended or

terminated for his behavior. Initially, Cross may have reasonably expected Fucaloro

to take her complaints more seriously and forward them to Human Resources or

someone in upper-level management. This expectation, however, became less

reasonable after Cross learned that Fucaloro was unlikely to report her complaints to

anyone else. Yet Cross never took any additional steps after finding that Fucaloro’s

response was unsatisfactory. It is thus difficult to see how she acted reasonably in

attempting to stop the harassment.5

 Accordingly, we conclude that the district court

did not err in granting summary judgment with respect to the reported misconduct.

B. The Unreported Incidents

As noted above, since leaving Prairie Meadows Cross has alleged numerous

additional instances of harassment involving Rizvic, Fucaloro, and Riddle.6

 The

district court concluded that Cross had failed to show that Prairie Meadows knew or
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should have known about these incidents. To survive summary judgment, a plaintiff

must have sufficient evidence that her employer knew or should have known about

the harassment and failed to take proper remedial action. An employer therefore

cannot be held liable for unreported harassment unless there is some basis for

establishing that it knew or should have known about the misconduct. 

Cross concedes that she never reported the harassment, and the record shows

that it occurred while the valets worked outside, usually in a parking lot and at night.

Cross points to the fact that some of the valets who worked with her testified that they

witnessed harassment, which she contends supports the inference that the harassment

was obvious to everyone at Prairie Meadows. But several other valets who also

worked with Cross claimed not to have observed any misconduct, or claimed that

Cross participated in the offensive dialogue. The evidence thus does not support the

contention that the harassment was so ubiquitous that it could not have been missed.

And Fucaloro, Riddle, and other members of Prairie Meadows management all

testified that they had no knowledge of the unreported harassment. On this record, the

district court did not err in concluding that the evidence was insufficient to raise a

genuine issue of material fact as to whether Prairie Meadows knew or should have

known about the additional, unreported incidents. 

Cross argues that the district court should have considered portions of

Fucaloro’s testimony that she interprets as meaning that Fucaloro observed Rizvic

harassing her on a daily basis. The parts of Fucaloro’s deposition to which Cross

points, however, do not establish that Fucaloro was aware of misconduct that would

rise to the level of a hostile work environment. In referring to Rizvic pulling Cross’s

ponytail, Fucaloro offered the following explanation:

Fucaloro: On a daily basis, these guys tease each other like

this, joke around, try to keep everything—
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Cross’s Attorney: Are you testifying that Sam [Rizvic] teased Ms.

Cross like that on a daily basis?

Fucaloro: They both did to each other, yes.

Cross’s Attorney: What other examples can you give of Sam

[Rizvic] teasing Ms. Cross on a daily basis?

Fucaloro: Just horseplay stuff.

Construed in the light most favorable to Cross, that testimony shows that

Fucaloro believed that Cross and Rizvic engaged in mutual teasing, not that Cross was

sexually harassed. Indeed, Fucaloro later clarified his testimony by answering “no”

when asked whether he observed anything remotely sexual in the behavior to which

he had referred. Cross contends that Fucaloro’s use of the label “horseplay” was

inaccurate and self-serving and that a reasonable jury could infer that what Fucaloro

considered teasing was actually sexual harassment. She argues that this is so because

the hair-pulling incident was a serious assault and because Fucaloro elsewhere

admitted that Rizvic’s conduct fell under the company’s definition of sexual

harassment. Fucaloro testified, however, that his perception of the hair-pulling

incident as horseplay was based on a witness who had contradicted Cross’s

description of the encounter. Although Fucaloro may have been wrong about the

severity of the misconduct, there is no basis for doubting the sincerity of his belief.

As for Cross’s claim that Fucaloro knew that the behavior fell within Prairie

Meadows’s sexual harassment policy, we have already explained that employers may

draft harassment policies that are narrower and more demanding than Title VII.

Further, the record does not support Cross’s interpretation of Fucaloro’s testimony.

Fucaloro testified as follows:

Cross’s Attorney: Let’s go back to [the sexual harassment policy].

The fourth bullet point toward the bottom of the
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page reads, “It is not your job to decide whether

or not the complaint should be reported. If it was

reported to you, YOU MUST FORWARD THE

COMPLAINT TO HUMAN RESOURCES,” and

“YOU MUST FORWARD THE COMPLAINT

TO HUMAN RESOURCES” is in capital letters,

isn’t it?

Fucaloro: Yes, it is.

Cross’s attorney: Your failing to take [the hair-pulling incident] to

human resources directly violates this policy,

doesn’t it, sir?

Fucaloro: Yes, it does, but at the time it was more under

mutual respect, I believe, rather than being sexual

harassment, or harassment. 

When read in its entirety, that testimony does not reasonably support the

inference that Fucaloro believed that the hair-pulling incident was sexual harassment.

To the contrary, Fucaloro stated that he believed the conduct fell within the

company’s policy on mutual respect between employees. The record does not support

Cross’s assertion that Fucaloro intentionally mislabeled Rizvic’s conduct or that

Fucaloro admitted observing sexual harassment on a daily basis. Even if an inference

could be drawn that Fucaloro might have observed additional incidents of sexual

harassment, his testimony would not provide enough evidence for a reasonable jury

to find that Prairie Meadows was aware of harassment that rose to the level of a

hostile work environment. See Anda v. Wickes Furniture Co., Inc., 517 F.3d 526, 533

(8th Cir. 2008) (holding that to survive summary judgment, a plaintiff must have more

than a mere scintilla of evidence that an employer was aware of unreported sexual

harassment). Accordingly, the district court did not err in granting summary judgment

on the ground that Cross failed to show that Prairie Meadows knew or should have

known about the unreported harassment.
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III.

The judgment is affirmed. 

______________________________